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 Canadian Immigration and Refugee Law for Legal Professionals, 5e

CHAPTER 7
Family Class

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Learning Outcomes
• Describe eligible family relationships.
• Explain the eligibility criteria to sponsor.
• Explain the rights and obligations of sponsorship.
• Calculate the duration period of an undertaking.
• Calculate the sponsor’s minimum necessary income
(LICO) for particular sponsorships.
• Explain the eligibility criteria for permanent residence
under the family classes.
• Describe the application process of sponsorship.

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At the Café with Monica and Jordan

Discuss:
Monica’s friend Nadia is marrying Curtis a foreign
national. Jordan raises some alarm bells.
• What alarm bells?

• What do you think about agreeing to marry someone

and sponsoring them to Canada before even knowing
about the rights and obligations of sponsorship?
• After you have read this chapter, come back to these
questions to see if you change your mind.

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Figure 7.1 Sponsor Applicant and PR

Applicant Chart

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Basis in Law
• IRPA, section 12(1) provides that foreign nationals
may be selected as members of the family class on
the basis of their relationship to a Canadian citizen
or a permanent resident.
• IRPA, section 13(1) allows Canadian citizens and
permanent residents to sponsor members of the
family class.
• Members of the family class are not required to meet
the selection criteria imposed on members of the
economic class—e.g., language, education, self-
sufficiency criteria.
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Figure 7.2. Relationship to a Canadian Citizen or

Permanent Resident Sponsor

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Bad Faith Relationships

• A relationship of convenience is a relationship that
exists for the sole purpose of gaining permanent
residence
• This is also referred to as a bad-faith relationship
• Elements of a bad-faith relationship (IRPR, s 4(1)):
• It must have been entered into primarily for the purpose
of acquiring a status or privilege under the IRPA
• The relationship is not genuine (there was no intention on
the part of the sponsored spouse to reside with their
sponsor)

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Spousal Relationships
Married Spouse (IRPR, s 117(9))
• Spouses may be of the same sex or the opposite sex
• To qualify for sponsorship, a spouse must be:
• at least 18 years of age
• legally married
• not otherwise married to someone else
• A marriage that takes place outside Canada must be legal in that
country
• Both spouses must have been physically present at the wedding
ceremony
• Proxy, telephone, fax, or internet marriages are considered
excluded relationships with limited exception for Canadian Forces
members
• The onus is on the PR applicant to prove the validity of the marriage

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Spousal Relationships
Unmarried Partners (IRPR, ss 1-2)
• Common law partner
• An individual who is cohabiting with the person in a conjugal
relationship, having so cohabited for a period of at least one
year
• Includes same-sex and opposite-sex marriages
• Conjugal Partner
• A foreign national residing outside Canada who is in a
conjugal relationship with the sponsor and has been in that
relationship for a period of at least one year
• Conjugal partners are those who would have lived together as
common law partners but for certain obstacles, such as
immigration barriers or sexual orientation
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Adopted Children & Other Relationships

• Adopted Children
• The “Best Interests of the Child” principle; article 3,
United Nations Convention on the Rights of the Child
• Other Relationships
• Parents & grandparents
• Unlisted relative: If a sponsor does not have a closely
related family member who is either a Canadian citizen or
permanent resident, they may sponsor an unlisted
relative
• Unlisted relatives may include dependent children, aunts,
uncles, nieces, nephews, and cousins
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 12

The Sponsorship Process

• Application for sponsorship by a qualifying individual –
Sponsor
• Application for permanent residence – Principal applicant
• Elements of successful application:
• Proof of a genuine relationship exists between sponsor
and principal applicant. Sponsor’s ability to enter into an
undertaking—with the Canadian government for a
prescribed period of time.
• Mutual obligations of sponsorship between sponsor and
principal applicant.

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Sponsor – Eligibility Criteria

• Sponsors must:

• be a Canadian citizen or permanent resident;

• be at least 18 years old;
• reside in Canada (with limited exception for Canadian
citizens residing outside of Canada who intend to
return)
• not be subject to sponsorship bars
• file an application to sponsor a member of the family
class or a member of the spouse or common law
partner in Canada class
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Figure 7.3 The Sponsor

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Bars to Sponsorship
• A person may not sponsor (or be a
• In receipt of social assistance for a
co-signer) if any of the following
bars to sponsorship exist:
reason other than disability
• In default of a previous
• Subject to a removal order
sponsorship undertaking
• Detained in any penitentiary, jail,
reformatory, or prison • Signed an undertaking for a
previous spouse/common law
• Convicted of certain specified
partner and three years have not
offences
elapsed since they became a
• In default of court ordered permanent resident
spousal/child support payments
• Became a permanent resident or
• In default of a debt owed under Canadian citizen after being
the IRPA sponsored as a spouse or common
• Undischarged bankrupt under the law partner and five years have not
Bankruptcy and Insolvency Act yet elapsed (IRPR s 130)

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Figure 7.4 Example—Questions Related to

Sponsorship Bars

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Undertaking and Sponsorship Agreement

• Obligations of Sponsorship
• Undertaking
• By signing form IMM 1344
• Formal, legal commitment to become financially
responsible for the sponsored family members
• Duration varies: 3 to 20 years depending on the
relationship & age of PR applicant
• The undertaking does not nullify with a change in
circumstances
• Calculate the duration of Marcus’s undertaking (p. 204)

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Figure 7.5 Example of an Undertaking by

Sponsor

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Table 7.1 Duration of Undertaking

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Financial Requirements
• Different rules for different categories of
sponsorship
• Sponsor must have the MIN (total income that is at
least equal to the LICO level)
• Proof: Notice of Assessment (Option C printout)
from the Canada Revenue Agency
• See textbook example at Table 7.2 Federal Income
Table, 2020 (p. 207)

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Figure 7.6. Principal Applicant for Permanent

Residence

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Proof of Relationship to the Sponsor

• Onus is on applicants to establish the nature of their
relationship to the sponsor.
• The applicant must provide identity documents and
other documents/evidence to establish a genuine
relationship to the sponsor and to their own
dependants.
• In the case of biological relatives, if no documentary
evidence exists to support the relationship,
applicants may be required to provide DNA
evidence.
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Figure 7.8 General Application Process for

Sponsoring Spouse, Partners, and Dependent
Children

Figure 7.8

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Application Process for Sponsoring Parents and

Grandparents
Specific to this sponsorship type:
• Cap on number of applications per year
• Application package/fees
• Duration of undertaking
• Sponsor’s eligibility:
• Sponsors must sign an undertaking that is valid for 20 years for all
persons included in the sponsorship undertaking
• Substantial earnings to qualify as a sponsor (see Table 7.3)
• An alternative to sponsorship for permanent residence is temporary
residence with the Parent and Grandparent Super Visa, which
allows re-entry for up to ten years.

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Adoption
• Severs a child’s legal relationship to the biological parents
• Needs genuine and informed consent of the biological
parents
• An adoptive parent must satisfy the visa officer that the
biological parent has no legal rights with respect to the child
• There are two processes for adoption:
1. The adoption process
2. The sponsorship process for immigration/citizenship

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Decision on Applications Under the Family

Class—Decision on Sponsorship Application
• Sponsor is ineligible—elect to end processing

• Sponsor is ineligible—elect to pursue application

• Sponsored person is not a member of the family class

• Sponsor is eligible

• Applicant is eligible

• Right to appeal

• See chapter 16: Immigration and Refugee Appeals

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